How Voting-Machine Errors Reflect a Wider Crisis for American Democracy

Many touch-screen voting machines are still in service, despite their well-documented problems.

Photograph by Elijah Nouvelage / Bloomberg / Getty

When reports began circulating last week that voting machines in Texas were flipping ballots cast for Beto O’Rourke over to Ted Cruz, and machines in Georgia were changing votes for the Democratic gubernatorial candidate Stacey Abrams to those for her Republican opponent, Brian Kemp, it would not have been unreasonable to suppose that those machines had been hacked. After all, their vulnerabilities have been known for nearly two decades. In September, J. Alex Halderman, a computer-science professor at the University of Michigan, demonstrated to members of Congress precisely how easy it is to surreptitiously manipulate the AccuVote TS, a variant of the direct-recording electronic (D.R.E.) voting machines used in Georgia. In addition, Halderman noted, it is impossible to verify that the votes cast were not the votes intended, since the AccuVote does not provide a physical record of the transaction.

Election-security experts, meanwhile, used the opportunity to remind the public—yet again—how susceptible touch-screen voting machines are to error, especially because they often rely on outdated and unsupported software. As the Brennan Center for Justice cautioned back in 2008, typically machines flip votes because they aren’t properly calibrated. This can happen, and does happen, to candidates from any party. But none of that was what we were hearing from election officials themselves. “The machines do not have glitches,” Stan Stanart, the county clerk in Harris County, Texas, which uses a system called the Hart InterCivic eSlate, told a local television station. He blamed mistakes on the voters themselves.

The irony here is that these particular vote-flipping machines were deployed across the country in response to the monumental failure of punch-card voting machines during the 2000 Presidential election, when so-called hanging chads very likely resulted in the wrong man winning. The crisis that ensued inspired a bipartisan Congress, in 2002, to pass the Help America Vote Act (HAVA). Among other things, HAVA created the Election Assistance Commission, which it then deputized to test and certify voting machines. The act also allocated millions of dollars for election-infrastructure upgrades, much of which was used to replace traditional voting machines with computerized machines like eSlate and the AccuVoteTS. Georgia, in fact, was the first state to adopt D.R.E. touch screens statewide.

Those machines are still in service, despite their well-documented problems. A lawsuit to compel Georgia to use paper ballots in the November midterms fell short in September, when Judge Amy Totenberg, of the U.S. District Court for the Northern District of Georgia, ruled that there was not enough time to get a paper-ballot system up and running. But she also wrote that the plaintiffs had shown that Georgia’s voting machines posed “a concrete risk of alteration of ballot counts that would impact their own votes.” Totenberg added that “given the absence of an independent paper audit trail of the vote, the scope of this threat is difficult to quantify, though even a minor alteration of votes in close electoral races can make a material difference in the outcome.”

This is especially troublesome because Kemp, the Georgia secretary of state, is overseeing his own election. If the state’s voting machines—which he has resisted replacing—are flipping in his favor, there will be no way to prove it. On October 22nd, the former President Jimmy Carter, a lifelong Georgian and veteran international-election observer, called on Kemp to resign as secretary of state to eliminate this conflict of interest. Kemp did not respond. Earlier this year, after purging more than half a million voters—more than three hundred thousand of them erroneously—and sidelining fifty-three thousand voter-registration applications in this election cycle, most of them from African-Americans (Abrams is black), Kemp said, “For anyone to think there’s a way to manipulate the process because you’re secretary of state is outrageous.”

The voting machines purchased back in the early two-thousands were never meant to last this long. They have a shelf life of ten, maybe fifteen years. Many are no longer made, or the companies that manufactured them have gone out of business, or both. To get spare parts, election officials have had to scour eBay and Craigslist, looking for old machines that other municipalities have discarded. Those municipalities have the funds to buy new voting equipment. Under-resourced communities do not. What we’re getting, as the Brennan Center has pointed out, is a “two-tiered” electoral system, bound to larger economic and social inequalities. Decrepit and broken machines result in long lines, and long lines result in people walking away without voting. This is not voter suppression—it’s voter depression, but the consequences are the same. In 2012, for instance, somewhere between five hundred thousand and seven hundred thousand people were shut out of voting by long wait times. And long lines, according to researchers at the Caltech/M.I.T. Voting Technology Project, undermine public confidence in the election system, “even when individuals do not experience the long lines themselves.”

HAVA also introduced the provisional ballot, a fail-safe mechanism created to enable citizens to vote even if they encounter obstacles on Election Day, such as faulty voting machines, eligibility challenges by poll workers, or discrepancies in the voting records. Once they are cast, provisional ballots are put aside until their authenticity can be verified. But the law has left it to the states to decide how these ballots are counted—or not—and when. This could be a couple of days after an election, a week later, or never. They become crucial in close elections but marginal otherwise; about twenty per cent of provisional ballots are not counted in midterm elections, and about thirty per cent in Presidential elections.

When paired with the restrictive voter-I.D. laws that Republican-controlled states have been passing since 2005, ostensibly to prevent voter fraud—which has repeatedly been shown to be all but nonexistent—provisional ballots, intended to protect voters, become yet another instrument of disenfranchisement. A provisional ballot cast in Indiana, the first state to implement restrictive voter-I.D. laws, will be rejected for the very same reason that it was cast provisionally in the first place: because the voter does not have a state-issued I.D. In Georgia, a provisional voter with the wrong I.D. or no I.D. is given three days to bring the documents to a county registrar’s office, which may be open only during working hours.

According to the N.A.A.C.P., which recently lost a challenge to Alabama’s voter-I.D. law, an estimated hundred thousand Alabamians are effectively prevented from voting because they don’t have acceptable I.D.s. The judge’s rationale in the case—that the voter-I.D. law is not discriminatory, because it applies to all citizens equally—echoes the 2008 Supreme Court ruling in Crawford v. Marion County Election Board, which upheld Indiana’s restrictive voter-I.D. laws. In the words of Justice Antonin Scalia, who wrote a concurring opinion in the case, the Indiana law was “a generally applicable, nondiscriminatory voting regulation.” But even he acknowledged that a law applied universally is not the same as a law experienced equally, writing that the “the Indiana law affects different voters differently.” Of course, this fact, which Scalia deemed “irrelevant,” has been proved true in state after state since. In Wisconsin, in 2016, for instance, African-Americans were more than three times more likely to be deterred from voting by that state’s voter-I.D. law.

This past spring, in Texas, where black and Hispanic citizens comprise a disproportionate number of the more than six hundred thousand people who do not have the required voting documents, a federal court of appeals upheld a voter-I.D. law that levies criminal penalties on people who submit an incorrect affidavit asserting the right to vote. (Earlier this year, Texas sent a woman to prison for five years for mistakenly voting while she was on probation.) Strict voter-I.D. laws have kept Hispanics in Arizona, students in New Hampshire, Native Americans in North Dakota, and people of color in Wisconsin, Alabama, Indiana, Georgia, North Carolina, and Ohio, to name a few, from voting. “I plead guilty to having written the majority opinion” in Crawford, when it was heard by the Seventh Circuit Court of Appeals, the conservative jurist Richard Posner wrote in his 2013 memoir. That law, he observed, is “now widely regarded as a means of voter suppression rather than of fraud prevention.”

The United States has a long history of denying the vote to whole groups of people— especially women, people of color, and the poor. Poll taxes, literacy exams, and property deeds have been replaced by voter-I.D. laws, polling-place closures, and state-sanctioned efforts to curtail voter registration. Most recently, this has been a Republican strategy to grab and hold on to power, one best explained by the conservative operative Paul Weyrich when he was plotting Ronald Reagan’s path to victory, in 1980: “I don’t want everybody to vote . . . our leverage in the elections quite candidly goes up as the voting populace goes down.”

What we’re seeing now, as that strategy comes to fruition, and entrenched social and economic inequalities undermine the ability of whole swaths of citizens to cast a ballot, is a concerted effort to make sure that our election system does not work for everyone. Voting machines that flip votes don’t need to be hacked by a malicious foreign actor to undermine public confidence in the integrity of our democracy. That’s being done for Americans, by Americans.

Sue Halpern, a contributing writer covering politics and technology, has been writing for The New Yorker since 2005. She is the author, most recently, of the novel “Summer Hours at the Robbers Library.”